Thursday 8 March 2012

Will Clayton, Taylors SolicitorsSocial Media – The Ugly

What does it cover ?

What is the Problem ?

Where should the line be drawn between an employee’s private life and their

responsibilities towards their employer ?

Tackling Inappropriate Private Behaviour

• Employers are not prevented from challenging conduct just because it happens outside of work so long as it could or is thought likely to affect the employee or his work: Singh v London Country Bus Services Ltd [1976]

Tackling Inappropriate Private Behaviour (cont’d)

• Relevant factors:– Potential readership ?– Was the communication private ?– Compatibility - with employer’s purpose / reputation or

employee’s role– Criticisms of the employer, their employees, suppliers

or customers

Tackling Inappropriate Private Behaviour (cont’d)

• Publicised examples:– Kirsty Cook-Bell – Virgin Atlantic cabin crew – Mr K Gosden –v- Lifeline Project (fair dismissal)– Whitham –v- Club 24 Ltd t/a Ventura (unfair dismissal

– 20% contributory fault)– Preece –v- JD Wetherspoons plc (fair dismissal)

Inappropriate Private Behaviour -

Disciplinary Action & Dismissal • Source of complaint ?• Treating as misconduct. “Burchell” test applies:

– Reasonable belief in guilt;– Belief based on reasonable grounds; and– Before forming belief, the employer carried out as much of an

investigation as was reasonable in the circumstances

• Range of reasonable responses test applies to every stage

Inappropriate Private Behaviour - Disciplinary Action & Dismissal (Cont’d)

• Challenges:– Use of private equipment e.g. Gosden – Proving employee’s responsibility for the postings /

emails (if not admitted): e.g. Benning –v- British Airways plc;

– Existing published disciplinary rules (VIP if asserting gross misconduct): e.g. Gosden & Preece

– Consistency of Treatment– Privacy

Social Media Meets Employment Law Risk Areas

• Misconduct• Defamation• Brand or reputational

damage• Breach of confidentiality• Public controversy• Privacy / Human Rights• Vicarious Liability

• Harassment• Bullying• Discrimination• Productivity /

Performance• Safety• Data Protection / RIPA /

related regulations

What is the Answer ?• Complete ban of all forms of social media

use (in / out of work)?

• Unrestricted use?

• Something in between? Controlled use?

Social Media Policy – ACAS Research Paper Recommendations

• “All employers should have a [written] policy on internet / social media use…[which]...must set out clearly and explicitly the organisation’s expectations of and definitions of acceptable and unacceptable behaviour, and the consequences of violation. This should be consistent with the disciplinary procedures and cross-refer to them….”

Other ACAS recommendations• Online conduct should not differ from off-line

conduct…..

• The policy should be drawn up in consultation with staff / representatives…

• Policy on internet use also needs to be communicated

• Review policies on internet use / social media on a regular basis

Policy Considerations• What kind of usage is allowed for business ?• What kind of private use is not permissible ?• Use of the business name / association with it• How will / may the employer monitor employee’s

use of social media platforms?• Clearly communicate consequences of breaches

Policy Considerations (Cont’d)

• Data Protection: The Employment Practices Code

• RIPA

• Telecommunications (Lawful Business Practice) (Interception & Communication) Regulations

Any Questions?

Taylors SolicitorsEmployment Team

Will Clayton – Partner – Head of EmploymentEmma Swan – Senior Associate

Leanne Eddleston - Solicitor

Rawlings HouseExchange Street

BLACKBURNBB1 7JN

Ninth Floor80 Mosley StreetMANCHESTER

M2 3FXTel: 0844 8000 263www.taylors.com